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INTERIM ORDER

March 25, 2014 Government Records Council Meeting

Jeff CarterComplainant

v.Franklin Fire District No. 1

Custodian of Record

Complaint Nos. 2012-288, 2012-289, 2012-290,2012-293 & 2012-294

At the March 25, 2014 public meeting, the Government Records Council (“Council”)considered the March 18, 2014 Supplemental Findings and Recommendations of the ExecutiveDirector and all related documentation submitted by the parties. The Council voted unanimouslyto adopt the entirety of said findings and recommendations. The Council, therefore, finds thatsince there are significant issues of contested facts, this complaint should be referred to Office ofAdministrative Law for a fact-finding hearing to resolve the following:

1. A determination of whether the current Custodian conducted a sufficient search and fullycomplied with the Council’s August 27, 2013 Interim Order in its totality. This includesany attachments that exist within those e-mails provided. If it is determined thatcompliance was not fully met, the Office of Administrative Law may order disclosure ofany deficient records.

2. A determination of whether the current Custodian unlawfully denied access the nine (9)e-mails to which access was denied, by way of in camera review of same.

3. A determination of whether the original Custodian and/or current Custodian knowinglyand willfully violated OPRA and unlawfully denied access to the requested e-mails underthe totality of the circumstances.

4. A determination of the award of a reasonable attorney’s fee because the Complainantprimarily prevailing based on the Council’s Order and the Franklin Fire District’ssubsequent compliance with same. N.J.S.A. 47:1A-6.

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Interim Order Rendered by theGovernment Records CouncilOn The 25th Day of March, 2014

Robin Berg Tabakin, Esq., ChairGovernment Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

Steven Ritardi, Esq., SecretaryGovernment Records Council

Decision Distribution Date: March 26, 2014

Jeff Carter v. Franklin Fire District No. 1 (Somerset), 2012-288, 2012-289, 2012-290, 2012-293 and 2012-294 – Supplemental Findings andRecommendations of the Executive Director

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STATE OF NEW JERSEYGOVERNMENT RECORDS COUNCIL

Supplemental Findings and Recommendations of the Executive DirectorMarch 25, 2014 Council Meeting

Jeff Carter1 GRC Complaint Nos. 2012-288, 2012-289,Complainant 2012-290, 2012-293 and 2012-2942

v.

Franklin Fire District No. 13

Custodial Agency

Records Relevant to Complaint:

February 2, 2011 OPRA request No. 1: Electronic copies via e-mail of all e-mails regardingresolutions from January 1, 2009 to February 2, 2011 sent and/or received by eight (8) persons.

February 2, 2011 OPRA request No. 2: Electronic copies via e-mail of all e-mails regardingCommissioners’ salaries from January 1, 2008 to February 2, 2011 sent and/or received by nine(9) persons.

February 2, 2011 OPRA request No. 3: Electronic copies via e-mail of all e-mails regarding useof e-mail from January 1, 2000 to February 2, 2011 sent and/or received by fourteen (14)persons.

February 2, 2011 OPRA request No. 4: Electronic copies via e-mail of all e-mails regarding legalservices from January 1, 2008 to February 2, 2011 sent and/or received by ten (10) persons.

February 21, 2011 OPRA request: Electronic copies via e-mail of all e-mails regarding insurancefrom December 28, 2010 to February 21, 2011 sent and/or received by eight (8) persons, “JohnDoe” and “Jane Doe.”

Custodian of Record: Melissa Kosensky4

Request Received by Custodian: February 7, 2011 and February 28, 2011Response Made by Custodian: February 11, 2011 and February 28, 2011GRC Complaint Received: October 24, 2012 and November 1, 20125

1 Represented by John A. Bermingham, Jr., Esq. (Mount Bethel, PA) and Walter M. Luers, Esq., of Law Office ofWalter M. Luers, LLC (Clinton, NJ).2 The GRC has consolidated these complaints for adjudication because of the commonality of the parties and issues.3 Represented by Dominic DiYanni, Esq., of Davenport & Spiotti, LLC (Seaside Heights, NJ).4 The current Custodian of Record is Tim Szymborski, who replaced Ms. Melissa Kosensky on March 1, 2011.5 GRC Complaint Nos. 2012-288 through 2012-290 was received on October 24, 2012 and GRC Complaint Nos.2012-293and 2012-294 were received on November 1, 2012.


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Background

October 29, 2013 Council Meeting:

At its October 29, 2013 public meeting, the Council considered the October 22, 2013Supplemental Findings and Recommendations of the Executive Director and all relateddocumentation submitted by the parties. The Council voted unanimously to adopt the entirety ofsaid findings and recommendations. The Council, therefore, found that:

[T]he Custodian’s Counsel has failed to establish in his request forreconsideration of the Council’s August 27, 2013 Interim Order that either 1) theCouncil's decision is based upon a “palpably incorrect or irrational basis;” or 2) itis obvious that the Council did not consider the significance of probative,competent evidence. The Custodian’s Counsel failed to establish that thecomplaint should be reconsidered based on extraordinary circumstances or newevidence. The Custodian’s Counsel has also failed to show that the Council actedarbitrarily, capriciously or unreasonably. Specifically, the GRC’s imposition of astatute of limitation based on Mason v. City of Hoboken, 196 N.J. 51 (July 22,2008), contradicts the plain language in the Supreme Court’s holding. Thus, theCustodian Counsel’s request for reconsideration should be denied. Cummings v.Bahr, 295 N.J. Super. 374 (App. Div. 1996); D'Atria v. D'Atria, 242 N.J. Super.392 (Ch. Div. 1990); In The Matter Of The Petition Of Comcast Cablevision OfSouth Jersey, Inc. For A Renewal Certificate Of Approval To Continue ToConstruct, Operate And Maintain A Cable Television System In The City OfAtlantic City, County Of Atlantic, State Of New Jersey, 2003 N.J. PUC LEXIS438, 5-6 (N.J. PUC 2003).

Procedural History:

On October 30, 2013, the Council distributed its Interim Order to all parties. OnNovember 4, 2013, the Custodian’s Counsel filed a motion for leave to appeal the Council’sOctober 29, 2013 Interim Order. On November 6, 2013, Counsel submitted to the GRC a requestfor stay of the Council’s Order to appeal same, which the GRC granted on November 7, 2013.On December 13, 2013, the Appellate Division denied Counsel’s motion for leave to appeal theCouncil’s decision.

On December 20, 2013, the Complainant’s Counsel notified the GRC that Franklin FireDistrict No. 1’s (“FFD”) motion for leave to appeal was denied. Counsel further requested thatthe GRC’s stay be lifted and that the Custodian be ordered to comply with the October 29, 2013Order. On December 26, 2013, the Custodian’s Counsel sought an extension of time untilJanuary 13, 2014 to comply with the Council’s Order. On the same day, the GRC lifted the stayand granted the Custodian’s Counsel until January 13, 2014 to comply.

On January 9, 2014, the Custodian’s Counsel sought an additional 45 days to complywith the Council’s Order based on a number of factors. On January 10, 2014, the Complainant’sCounsel objected to the extension. The GRC agreed that 45 days was excessive; however, it did


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allow for a 30 day extension until February 10, 2014 based on the number of requests andpossibly responsive records.6

Between February 7, 2014 and February 10, 2014, the Custodian complied with eachOPRA request by providing responsive records, providing a document index identifying nine (9)e-mails for which access was not provided, and submitting certified confirmation of compliancethat the records provided are the records responsive to the Complainant’s OPRA requests.7

On March 10, 2014, the Complainant’s Counsel submitted a letter brief setting forth amultitude of issues as a result of the preliminary review of the FFD’s compliance with theCouncil’s Order. Counsel argued that the evidence of record proves that the original Custodianknowingly and willfully violated OPRA. Counsel contended that the totality of the circumstancesproves a number of factors motivated the original Custodian to withhold access to the responsiverecords at that time, including her 2011 bid for re-election, resignation of a commissioner due tocriminal conduct, the FFD’s defense of a sexual harassment/workplace violence lawsuit, sanctionof Open Public Meetings Act (“OPMA”) by the Somerset County Prosecutor’s Office andrepeated OPMA violations. Counsel contended that the original Custodian’s failure to providethe responsive records at that time nearly three (3) years ago prevented the Complainant fromusing the information contained in the e-mails to question the viability of the original Custodianas a candidate.

Counsel further contended that the current Custodian also benefited from neverresponding to the subject OPRA requests because he was up for re-election in 2012. Counselcontends that he already submitted evidence to the GRC contradicting the current Custodian’sStatement of Information certification that he did not know that the Complainant’s OPRArequests were still pending in March 2011.

Counsel also disputed that the current Custodian failed to adequately meet compliance.Counsel argued that the GRC should conduct an in camera review of the nine (9) e-mails forwhich access was denied. Counsel further argued that, at the very least, the Council should orderdisclosure of any e-mails containing more than three (3) commissioners on them because theyconstitute a violation of OPMA and any privilege is thus forfeited. Counsel further argued thatseveral e-mails contained attachments that were not disclosed. Counsel contended that in someinstances, the FFD failed to provide records for the entire time frame requested. Counsel arguedthat this is proof that either the search conducted was woefully insufficient or corrupted byconflict of interest. Counsel noted that no e-mails from the previous commissioner and subject ofthe sexual harassment lawsuit were provided. Counsel implored the GRC to order anindependent party to conduct a search of the FFD’s e-mail, as well as the relevant e-mailaccounts of all other named officials to ensure that all records were provided.

6 On January 11, 2014, the Complainant’s Counsel submitted a letter brief urging the GRC to establish proceduresand safeguards in situations where responsive records might exist in personal e-mail accounts and address conflict ofinterest issues. However, the GRC has already established a policy on the issue of location of government records.See Meyers v. Borough of Fair Lawn, GRC Complaint No. 2005-127 (Interim Order dated December 8, 2005);Michalak v. Borough of Helmetta (Middlesex), GRC Complaint No. 2010-220 (Interim Order dated January 31,2012). Further, the GRC declines to adjudicate any possible conflict of interest issues as OPRA does not expresslyafford the GRC the opportunity to do so. N.J.S.A. 47:1A-7(b).7 The GRC received no objections to the Custodian’s compliance.


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Counsel argued that the Complainant has used OPRA to identify different forms ofmisconduct within the FFD, which is what OPRA was intended to accomplish. Burnett v. Cnty.of Bergen, 198 N.J. 408, 414 (2009); Kovalcik v. Somerset Cnty. Prosecutor’s Office, 206 N.J.581 (2011). Counsel contends that the multitude of evidence surrounding his attempts to root outmisconduct, as well as the evidence present in this and other Denial of Access complaintscurrently in various stages of adjudication against the FFD, warrant a hearing before the Officeof Administrative Law (“OAL”) to determine the issue of a knowing and willful violation.Counsel contended that the actions of the FFD are best weighed by a fact finder with the abilityto “. . . observe the demeanor of the involved witnesses . . .” In re Tenure Hearing of Tyler, 236N.J. Super. 478 485 (App. Div. 1989).

Analysis

Compliance

At its August 27, 2013 meeting, the Council ordered the Custodian to provide recordsreasonably responsive to the Complainant’s five (5) OPRA requests or to certify to thedisclosability and/or existence of same. The Order further required that the Custodian submitcertified confirmation of compliance, in accordance with N.J. Court Rule 1:4-4, to the ExecutiveDirector. On August 28, 2013, the Council distributed its Interim Order to all parties, providingthe Custodian five (5) business days to comply with the terms of said Order.

Following the Council’s denial of a request for reconsideration on October 29, 2013, theGRC granted Custodian Counsel’s request for a stay of this Order to allow the AppellateDivision to rule on Custodian Counsel’s motion for leave to appeal. On December 13, 2013, theAppellate Division denied the motion. On December 26, 2013, the GRC lifted the stay and statedthat the Custodian must comply with the Council’s Order.

Thereafter, the Custodian’s Counsel sought two (2) extensions of time, with the lastextension expiring on February 10, 2014. Between February 7, 2014 and February 10, 2014, theCustodian provided responsive records to the Complainant, identified nine (9) e-mails to whichaccess was denied, and simultaneously provided certified confirmation of compliance to theExecutive Director.

On March 10, 2014, Complainant’s Counsel submitted an extensive letter brief (withattachments) addressing a multitude of issues. Among the issues of relevance to the GRC’sadjudication of this complaint was his dispute of the Custodian’s compliance. Further, Counselalleged a selective search for the responsive records. Counsel also presented a complex argumentin favor of finding that both the original and current Custodians knowingly and willfully violatedOPRA.

The Administrative Procedures Act provides that the OAL “shall acquire jurisdictionover a matter only after it has been determined to be a contested case by an agency head and hasbeen filed with the [OAL] . . .” N.J.A.C. 1:1-3.2(a). In the past, when the issue of contested factshave arisen from a custodian’s compliance with an order, the Council has opted to send saidcomplaint to the OAL for a fact-finding hearing. See Mayer v. Borough of Tinton Falls


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(Monmouth), GRC Complaint No. 2008-245 (Interim Order dated July 27, 2010); Latz v.Township of Barnegat (Ocean), GRC Complaint No. 2012-241 et seq. (Interim Order datedJanuary 28, 2014).

A review of this complaint and all the evidence submitted to date has painted a picture ofa significant adversarial relationship, conflicting certified statements and contested compliance.Specifically, this picture includes:8

The original Custodian certified her SOI that she attached responsive records, yet nonewere present.

The current Custodian certified in the SOI that he had no knowledge of the requests atissue here, yet there is evidence that he at least had cursory knowledge of all requestssubmitted based on a February 27, 2011 e-mail between Custodians submitted as part ofthe Denial of Access Complaint.

Although the OPRA requests contained varying time frames, a review of the recordsprovided suggests that the current Custodian’s search only encompassed a periodbetween 2008 and the date of the requests.

There is a lack of evidence regarding the search conducted to obtain access to all possiblyresponsive e-mails, to include those that may be in existence in personal e-mail accountsof the individuals named in each OPRA request.

Complainant’s Counsel has also disputed whether the current Custodian lawfully deniedaccess to the nine (9) e-mails withheld as part of compliance.

Complainant further disputed the current Custodian’s failure to provide e-mailattachments as part of compliance.

Based on the foregoing, it is clear that a fact-finding hearing will provide the most efficient andeffective method for properly adjudicating the contested facts present in this complaint.

Therefore, since there are significant issues of contested facts, this complaint should bereferred to OAL for a fact-finding hearing to resolve the following:

1. A determination of whether the current Custodian conducted a sufficient search and fullycomplied with the Council’s August 27, 2013 Interim Order in its totality. This includesany attachments that exist within those e-mails provided. If it is determined thatcompliance was not fully met, the OAL may order disclosure of any deficient records.



4. A determination of the award of a reasonable attorney’s fee because the Complainantprimarily prevailing based on the Council’s Order and the FFD’s subsequent compliancewith same. N.J.S.A. 47:1A-6.

8 The GRC has no authority to address the various OPMA and conflict of interest issues presented and thus does notinclude these points as part of its consideration.


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Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that since there aresignificant issues of contested facts, this complaint should be referred to Office of AdministrativeLaw for a fact-finding hearing to resolve the following:

1. A determination of whether the current Custodian conducted a sufficient search and fullycomplied with the Council’s August 27, 2013 Interim Order in its totality. This includesany attachments that exist within those e-mails provided. If it is determined thatcompliance was not fully met, the Office of Administrative Law may order disclosure ofany deficient records.



4. A determination of the award of a reasonable attorney’s fee because the Complainantprimarily prevailing based on the Council’s Order and the Franklin Fire District’ssubsequent compliance with same. N.J.S.A. 47:1A-6.

Prepared By: Frank F. CarusoSenior Case Manager

Approved By: Dawn R. SanFilippo, Esq.Senior Counsel

March 18, 2014


INTERIM ORDER

October 29, 2013 Government Records Council Meeting



Custodian of Record

Complaint Nos. 2012-288, 2012-289, 2012-290,2012-293 and 2012-294

At the October 29, 2013 public meeting, the Government Records Council (“Council”)considered the October 22, 2013 Supplemental Findings and Recommendations of the ExecutiveDirector and all related documentation submitted by the parties. The Council voted unanimouslyto adopt the entirety of said findings and recommendations. The Council, therefore, finds that theCouncil find that the Custodian’s Counsel has failed to establish in his request forreconsideration of the Council’s August 27, 2013 Interim Order that either 1) the Council'sdecision is based upon a “palpably incorrect or irrational basis;” or 2) it is obvious that theCouncil did not consider the significance of probative, competent evidence. The Custodian’sCounsel failed to establish that the complaint should be reconsidered based on extraordinarycircumstances or new evidence. The Custodian’s Counsel has also failed to show that theCouncil acted arbitrarily, capriciously or unreasonably. Specifically, the GRC’s imposition of astatute of limitation based on Mason v. City of Hoboken, 196 N.J. 51 (July 22, 2008), contradictsthe plain language in the Supreme Court’s holding. Thus, the Custodian Counsel’s request forreconsideration should be denied. Cummings v. Bahr, 295 N.J. Super. 374 (App. Div. 1996);D'Atria v. D'Atria, 242 N.J. Super. 392 (Ch. Div. 1990); In The Matter Of The Petition OfComcast Cablevision Of South Jersey, Inc. For A Renewal Certificate Of Approval To ContinueTo Construct, Operate And Maintain A Cable Television System In The City Of Atlantic City,County Of Atlantic, State Of New Jersey, 2003 N.J. PUC LEXIS 438, 5-6 (N.J. PUC 2003).

Interim Order Rendered by theGovernment Records CouncilOn The 29th Day of October, 2013


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Decision Distribution Date: October 30, 2013


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ReconsiderationSupplemental Findings and Recommendations of the Executive Director

October 29, 2013 Council Meeting


v.


Custodial Agency









1 Represented by John A. Bermingham, Jr., Esq. (Mount Bethel, PA).2 The GRC has consolidated these complaints for adjudication because of the commonality of the parties and issues.3 Represented by Dominic DiYanni, Esq., of Davenport & Spiotti, LLC (Seaside Heights, NJ).4 The current Custodian of Record is Tim Szymborski, who replaced Ms. Melissa Kosensky on March 1, 2011.5 GRC Complaint Nos. 2012-288 through 2012-290 was received on October 24, 2012 and GRC Complaint Nos.2012-293and 2012-294 were received on November 1, 2012.


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Background

August 27, 2013 Council Meeting:

At its August 27, 2013 public meeting, the Council considered the August 20, 2013Findings and Recommendations of the Executive Director and all related documentationsubmitted by the parties. The Council voted unanimously to adopt the entirety of said findingsand recommendations. The Council, therefore, found that:

1. Although the Custodian timely responded to the Complainant’s February 21, 2011OPRA request in writing requesting an extension of one (1) week to respond to saidrequest, the Custodian’s failure to respond in writing within the extended time frameresults in a “deemed” denial of the Complainant’s OPRA request pursuant to N.J.S.A.47:1A-5(i), and Kohn v. Township of Livingston Library (Essex), GRC ComplaintNo. 2007-124 (March 2008). See also Verry v. Borough of South Bound Brook(Somerset), GRC Complaint No. 2008-253 (September 2009).

2. Because the Custodian failed to attempt to reach a reasonable accommodation prior todenying access to the Complainant’s February 2, 2011 OPRA requests, theCustodian’s response is insufficient. N.J.S.A. 47:1A-5(g); Herron, supra.

3. The Custodian failed to bear her burden of proving a lawful denial of access to anyresponsive records to the February 2, 2011 OPRA requests and the remainder of theComplainant’s February 21, 2011 OPRA request identifying specific individuals.N.J.S.A. 47:1A-6; Carter v. Franklin Fire District No. 1 (Somerset), GRC ComplaintNo. 2011-234 (Interim Order dated March 22, 2013). Thus, the Custodian shallprovide those readily identifiable records that existed at the time of the Complainant’sOPRA requests, if any. If the Custodian believes certain records are exempt fromdisclosure or that no records exist, the Custodian must legally certify to these facts.

4. The Custodian shall comply with item No. 3 above within five (5) business daysfrom receipt of the Council’s Interim Order with appropriate redactions,including a detailed document index explaining the lawful basis for eachredaction, and simultaneously provide certified confirmation of compliance, inaccordance with N.J. Court Rule 1:4-4,6 to the Executive Director.7

5. The Custodian has borne her burden of proving a lawful denial of the access to theportion of the Complainant’s February 21, 2011 OPRA request including the terms“John Doe” and “Jane Doe.” N.J.S.A. 47:1A-6; Wolosky v. Borough of Riverdale(Morris), GRC Complaint No. 2010-192 (October 2011).

6 "I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statementsmade by me are willfully false, I am subject to punishment."7 Satisfactory compliance requires that the Custodian deliver the records to the Complainant in the requestedmedium. If a copying or special service charge was incurred by the Complainant, the Custodian must certify that therecord has been made available to the Complainant but the Custodian may withhold delivery of the record until thefinancial obligation is satisfied. Any such charge must adhere to the provisions of N.J.S.A. 47:1A-5.


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6. The Council defers analysis of whether the original Custodian knowingly andwillfully violated OPRA and unreasonably denied access under the totality of thecircumstances pending the Custodian’s compliance with the Council’s Interim Order.

7. The Council defers analysis of whether the Complainant is a prevailing party pendingthe Custodian’s compliance with the Council’s Interim Order.

Procedural History:

On August 28, 2013, the Council distributed its Interim Order to all parties. OnSeptember 12, 2013, the Custodian’s Counsel filed a request for reconsideration of the Council’sInterim Order based on extraordinary circumstances and new evidence. Specifically, Counselrequested that the Council revise its Order to include consideration of Franklin Fire District No.1’s (“FFD”) argument of whether the GRC should impose the statute of limitation that theSuperior Court imposed on itself in Mason v. City of Hoboken, 196 N.J. 51 (July 22, 2008).

On September 13, 2013, the Complainant’s Counsel submitted objections to theCustodian Counsel’s request for reconsideration. Counsel argues that the GRC should not grantthe Custodian Counsel’s reconsideration because the request asks the GRC to rewrite existinglegislation, which it has no authority to do.

Analysis

Reconsideration

Pursuant to N.J.A.C. 5:105-2.10, parties may file a request for a reconsideration of anydecision rendered by the Council within ten (10) business days following receipt of a Councildecision. Requests must be in writing, delivered to the Council and served on all parties. Partiesmust file any objection to the request for reconsideration within ten (10) business days followingreceipt of the request. The Council will provide all parties with written notification of itsdetermination regarding the request for reconsideration. N.J.A.C. 5:105-2.10(a) – (e).

In the matter before the Council, the Custodian’s Counsel filed the request forreconsideration of the Council’s August 27, 2013 Interim Order on September 12, 2013, one (1)day from the extended time frame to submit same.

Applicable case law holds that:

A party should not seek reconsideration merely based upon dissatisfaction with adecision.” D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). Rather,reconsideration is reserved for those cases where (1) the decision is based upon a“palpably incorrect or irrational basis;” or (2) it is obvious that the finder of factdid not consider, or failed to appreciate, the significance of probative, competentevidence. E.g., Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).The moving party must show that the court acted in an arbitrary, capricious orunreasonable manner. D'Atria, supra, 242 N.J. Super. at 401. “Although it is an


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overstatement to say that a decision is not arbitrary, capricious, or unreasonablewhenever a court can review the reasons stated for the decision without a loudguffaw or involuntary gasp, it is not much of an overstatement.” Ibid.

In The Matter Of The Petition Of Comcast Cablevision Of South Jersey, Inc. For A RenewalCertificate Of Approval To Continue To Construct, Operate And Maintain A Cable TelevisionSystem In The City Of Atlantic City, County Of Atlantic, State Of New Jersey, 2003 N.J. PUCLEXIS 438, 5-6 (N.J. PUC 2003).

The GRC has reviewed the parties’ submissions and the Supreme Court’s decision inMason v. City of Hoboken, 196 N.J. 51 (July 22, 2008)(adopting a 45-day statute of limitationsfor OPRA actions filed in Superior Court). The GRC is not satisfied that the Court’s decision canbe applied to its adjudication process, as the Court noted that “requestors have the additionaloption of seeking mediation before the GRC in an informal setting with no statute of limitations.”Id. at 70 (emphasis added). In order to engage in the GRC’s informal mediation process, arequestor must first submit a formal Denial of Access Complaint. N.J.S.A. 47:1A-7(d). Toconclude that the Court’s holding in Mason applies to the GRC contradicts the plain language ofMason. See also Rivera v. Twp. of Monroe, Police Department (Middlesex), GRC ComplaintNo. 2009-331 (Interim Order dated January 25, 2011). Thus, the Council’s Order should remainunchanged as the Custodian Counsel’s request for reconsideration is neither an extraordinarycircumstance or new evidence.

As the moving party, the Custodian’s Counsel was required to establish either of thenecessary criteria set forth above: either 1) the Council's decision is based upon a "palpablyincorrect or irrational basis;" or 2) it is obvious that the Council did not consider the significanceof probative, competent evidence. See Cummings, 295 N.J. Super. at 384. The Custodian’sCounsel failed to establish that the complaint should be reconsidered based on extraordinarycircumstances or new evidence. The Custodian’s Counsel has also failed to show that theCouncil acted arbitrarily, capriciously or unreasonably. See D’Atria, 242 N.J. Super. at 401.Thus, the Custodian Counsel’s request for reconsideration should be denied. Cummings, 295N.J. Super. at 384; D'Atria, 242 N.J. Super. at 401; Comcast, 2003 N.J. PUC at 5-6.


The Executive Director respectfully recommends the Council find that the Custodian’sCounsel has failed to establish in his request for reconsideration of the Council’s August 27,2013 Interim Order that either 1) the Council's decision is based upon a “palpably incorrect orirrational basis;” or 2) it is obvious that the Council did not consider the significance ofprobative, competent evidence. The Custodian’s Counsel failed to establish that the complaintshould be reconsidered based on extraordinary circumstances or new evidence. The Custodian’sCounsel has also failed to show that the Council acted arbitrarily, capriciously or unreasonably.Specifically, the GRC’s imposition of a statute of limitation based on Mason v. City of Hoboken,196 N.J. 51 (July 22, 2008), contradicts the plain language in the Supreme Court’s holding.Thus, the Custodian Counsel’s request for reconsideration should be denied. Cummings v. Bahr,295 N.J. Super. 374 (App. Div. 1996); D'Atria v. D'Atria, 242 N.J. Super. 392 (Ch. Div. 1990);In The Matter Of The Petition Of Comcast Cablevision Of South Jersey, Inc. For A Renewal


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Certificate Of Approval To Continue To Construct, Operate And Maintain A Cable TelevisionSystem In The City Of Atlantic City, County Of Atlantic, State Of New Jersey, 2003 N.J. PUCLEXIS 438, 5-6 (N.J. PUC 2003).


Approved By: Brandon D. Minde, Esq.Executive Director

October 22, 2013


INTERIM ORDER

August 27, 2013 Government Records Council Meeting



Custodian of Record

Complaint Nos. 2012-288, 2012-289, 2012-290,2012-293 and 2012-294

At the August 27, 2013 public meeting, the Government Records Council (“Council”)considered the August 20, 2013 Findings and Recommendations of the Executive Director andall related documentation submitted by the parties. The Council voted unanimously to adopt theentirety of said findings and recommendations. The Council, therefore, finds that:




4. The Custodian shall comply with item No. 3 above within five (5) business daysfrom receipt of the Council’s Interim Order with appropriate redactions,including a detailed document index explaining the lawful basis for each

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redaction, and simultaneously provide certified confirmation of compliance, inaccordance with N.J. Court Rule 1:4-4,1 to the Executive Director.2




Interim Order Rendered by theGovernment Records CouncilOn The 27th Day of August, 2013




Decision Distribution Date: August 28, 2013


Jeff Carter v. Franklin Fire District No. 1 (Somerset), 2012-288, 2012-289, 2012-290, 2012-293 and 2012-294 – Findings andRecommendations of the Executive Director

1


Findings and Recommendations of the Executive DirectorAugust 27, 2013 Council Meeting


v.


Custodial Agency









1 Represented by John A. Bermingham, Jr., Esq. (Camden, NJ).2 The GRC has consolidated these complaints for adjudication because of the commonality of the parties and issues.3 Represented by Dominic DiYanni, Esq., of Davenport & Spiotti, LLC (Seaside Heights, NJ).4 The current Custodian of Record is Tim Szymborski, who replaced Ms. Melissa Kosensky on March 1, 2011.5 GRC Complaint Nos. 2012-284 through 2012-287 was received on October 24, 2012 and GRC Complaint No.2012-295 was received on November 1, 2012.


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Background6

Request and Response:

On February 2, 2011, the Complainant submitted four (4) Open Public Records Act(“OPRA”) requests to the Custodian. On February 7, 2011, the Custodian acknowledged receiptof the Complainant’s OPRA requests and asked that the Complainant complete official OPRArequest forms. On February 8, 2011, the Complainant asked the Custodian to explain why hemust fill out the forms. On February 11, 2011, Mr. William T. Cooper, Esq., previous FranklinFire District No. 1 (“FFD”) Counsel, responded on behalf of the Custodian denying theComplainant’s OPRA requests. Mr. Cooper stated that requiring the Custodian and/or office staffto search through years of e-mails would substantially disrupt agency operations. Mr. Cooperstated that as an accommodation, the FFD would consider contacting its Information Technology(“IT”) Agent to perform a search of e-mails stored in the system. Mr. Cooper requested that theComplainant confirm whether he wished to pursue the requests and the FFD would obtain aquote from the IT Agent.

On February 21, 2011, the Complainant submitted an OPRA request to the Custodian. OnFebruary 28, 2011, the Custodian responded in writing requesting an extension of one (1) weekto respond due to a pending change of custodian. The Complainant rejected said request statingthat the Custodian had a smartphone capable of receiving e-mails and that the Custodian had areasonable amount of time to respond. On March 22, 2011, Mr. Cooper responded on behalf ofthe Custodian denying the Complainant’s OPRA request as overly broad.

Denial of Access Complaint:

On October 24, 2012, the Complainant filed Denial of Access Complaints for GRCComplaint Nos. 2012-288, 2012-289 and 2012-290 with the Government Records Council(“GRC”). On November 1, 2012, the Complainant filed a Denial of Access Complaint for GRCComplaint Nos. 2012-293 and 2012-294 with the GRC. The Complainant notes that his February21, 2011 OPRA request is nearly identical to the request at issue in Carter v. Franklin FireDistrict No. 1 (Somerset), GRC Complaint No. 2011-234 (Interim Order dated March 22, 2013),except for the time frame and addition of “John Doe” and “Jane Doe.”

The Complainant states that in Verry v. Borough of South Bound Brook (Somerset),GRC Complaint No. 2011-114 et seq. (July 2012), the Council validated the complainant’sOPRA requests seeking e-mails, holding that “[t]he Custodian’s search for the responsiverecords … requires the Custodian to conduct a search of his e-mail account based on the requisiteinformation … to locate responsive records.” Id. The Complainant contends that because hisOPRA requests were properly formatted and because he noted the Custodian’s obligation tosearch files in the same OPRA request, Mr. Cooper, acting on the current Custodian’s behalf,knowingly and willfully violated OPRA. The Complainant further notes that Mr. Cooperrepresented a custodian in other matters in which the Council contemplated OPRA requests for

6 The parties may have submitted additional correspondence or made additional statements/assertions in thesubmissions identified herein. However, the Council includes in the Findings and Recommendations of theExecutive Director the submissions necessary and relevant for the adjudication of this complaint.


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e-mails. Verry v. Borough of South Bound Brook (Somerset), GRC Complaint No. 2009-108(April 2010); Verry v. Borough of South Bound Brook (Somerset), GRC Complaint No. 2009-124 (April 2010). The Complainant further asserts that while the requests at issue in GRCComplaint Nos. 2009-108 and 2009-124 lacked a subject matter, the following necessary criteriaare present and underlined in his OPRA requests: (1) the content and/or subject of the e-mail, (2)the specific date or range of dates during which the e-mail was transmitted or the e-mails weretransmitted, and (3) identification of the sender and/or the recipient thereof. Elcavage v. WestMilford Township (Passaic), GRC Complaint No. 2009-07 (April 2010); Sandoval v. NJ StateParole Board, GRC Complaint No. 2006-167 (October 2008). The Complainant contends that theevidence herein proves that Mr. Cooper knew what constituted a valid OPRA request for e-mailsand consciously, deliberately and intentionally denied the OPRA requests anyway.

The Complainant requests that the Council take judicial notice of Carter, because thefacts of that complaint are similar and the Complainant’s submissions therein of the conduct ofboth Custodians and Mr. Cooper apply here. The Complainant further requests that the Counciltake judicial notice of its holding in Carter v. Franklin Fire District No. 1 (Somerset), GRCComplaint No. 2011-76 (Interim Order dated August 28, 2012), in which the Council referredthe complaint to the Office of Administrative Law (“OAL”) for a determination of whether theCustodian knowingly and willfully violated OPRA.7

The Complainant requests that the Council: 1) determine that both Custodians and Mr.Cooper violated OPRA by failing to provide records to the Complainant within seven (7)business days; 2) order disclosure of all responsive records; 3) determine that both Custodiansand Mr. Cooper knowingly and willfully violated OPRA and unreasonably denied access to theresponsive record under the totality of the circumstances; and 4) determine that the Complainantis a prevailing party entitled to an award of reasonable attorney’s fees.

Statement of Information:

On February 18, 2013, the Custodian filed Statements of Information (“SOI”) for eachcomplaint.

The Custodian certifies that she was an elected member of the Board of Commissioners(“Board”). The Custodian certifies that as an elected official, she must utilize personal time tohandle OPRA requests. The FFD conducts reorganization on March 1 of every year because ofpossible turnover from election results. The Custodian certifies that she was not re-elected in2011; thus, the Board had to transition to the current Custodian. The Custodian certifies that shereceived approximately 40 OPRA requests from January 1, 2011 to February 21, 2011 with theComplainant accounting for 38 of them. The Custodian asserts that the task of sufficientlyresponding to multiple OPRA requests became burdensome.

7 In that complaint, the custodian certified that no financial disclosure statements existed. However, the complainantprovided evidence showing that the custodian was in possession of responsive records. Thus, the Councildetermined that the custodian’s denial of access could rise to the level of a knowing and willful violation under thetotality of the circumstances.


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February 2, 2011 OPRA requests:

The Custodian certifies that she received the Complainant’s February 2, 2011 OPRArequests on February 7, 2011, and acknowledged receipt on the same day. The Custodiancertifies that Mr. Cooper responded on February 11, 2011, denying the requests as a substantialdisruption of agency operations; however, Mr. Cooper offered to accommodate the Complainantby contacting an IT vendor to obtain a quote to retrieve responsive e-mails. N.J.S.A. 47:1A-5(c).The Custodian certifies that the Complainant never responded to Mr. Cooper and filed thesecomplaints almost two (2) years later.

The Custodian’s Counsel submitted a letter brief arguing that Mr. Cooper’s attempt toreach a reasonable accommodation after advising that the Complainant’s OPRA requests wouldsubstantially disrupt agency operations was lawful. N.J.S.A. 47:1A-5(g). Counsel states that theCouncil has previously decided on complaints where custodians asserted that responding to anOPRA request for voluminous records would substantially disrupt agency operations. Vessio v.NJ Dep’t of Community Affairs, Div. of Fire Safety, GRC Complaint No. 2007-63 (May 2007);Caggiano v. Borough of Stanhope, GRC Complaint No. 2006-220 (September 2007); Dittrich v.City of Hoboken (Hudson), GRC Complaint No. 2008-13 (June 2009). Counsel notes that inHerron v. Township of Montclair (Essex), GRC Complaint No. 2008-46 (April 2009), theCouncil determined that the custodian’s response was insufficient because she “… failed toattempt a reasonable accommodation … before denying access … on the basis that the requestwould substantially disrupt the Township’s operations …”

Counsel asserts that the facts here are closely related to those in Dittrich, supra, in thatMr. Cooper timely responded advising that the Complainant’s requests for years of e-mails frommultiple individuals would disrupt agency operations. Counsel contends that the Complainantfailed to reach an accommodation with the FFD and instead filed these complaints. Counselcontends that the Council should uphold the FFD’s denial of access; the actions of the Custodian,current Custodian and Mr. Cooper were not knowing and willful; and the Complainant shouldnot be awarded attorney’s fees.

February 28, 2011 OPRA request:

The Custodian certifies that she received the Complainant’s February 21, 2011 OPRArequest on February 28, 2011. The Custodian certifies that she sought an extension of a weekbecause the current Custodian was starting, which the Complainant denied. The Custodiancertifies that she forwarded the request to Mr. Cooper and he responded on March 22, 2011denying the request as overly broad.

The Custodian certifies that because she responded in a timely manner seeking anextension of time and was no longer the custodian of record for the FFD after February 28, 2011,her actions did not constitute a knowing and willful violation of OPRA.

The Custodian’s Counsel submitted a letter brief arguing that Mr. Cooper’s denial ofaccess to the February 28, 2011 OPRA request was lawful because “John Doe” and “Jane Doe”are not identifiable senders/recipients and the inclusion of “any reasonably construed variation


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thereof” is not an identifiable subject. Counsel contends that a custodian is not required toconduct research for e-mails from unknown individuals based on their proposed variations ofinsurance. MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super.534, 546 (App. Div. 2005); Bent v. Stafford Police Department, 381 N.J. Super. 30, 37 (App.Div. 2005); New Jersey Builders Association v. New Jersey Council on Affordable Housing, 390N.J. Super. 166, 180 (App. Div. 2007); Schuler v. Borough of Bloomsbury, GRC Complaint No.2007-151 (February 2009); Donato v. Township of Union, GRC Complaint No. 2005-182(February 2007); Elcavage, supra; Sandoval, supra. Counsel thus contends that Mr. Cooper’sdenial of access should be upheld; the actions of the Custodian, current Custodian and Mr.Cooper were not knowing and willful; and the Complainant should not be deemed a prevailingparty.

Additional Submissions:

On July 11, 2013, the Complainant contends that the SOIs are yet another example of thelengths the FFD will go to in order to defend its unlawful denials of access. The Complainantrequests that the GRC take judicial notice of all submissions for Carter, 2011-234, and apply thesame logic to these complaints. The Complainant further argues that the Custodian filed SOIssimilar to the one filed for Carter, 2011-234, even after the Council made a determination thatthe Custodian unlawfully denied access to the Complainant’s similar OPRA request in thatcomplaint. The Complainant contends that the GRC must consider several events taking place atthe time of his requests, which include the Custodian’s re-election bid, the resignation of acommissioner for criminal activities and the FFD’s defense of a sexual harassment/workplaceviolence lawsuit. The Complainant argues that because of these issues, any delay or denial ofaccess to potentially damaging information benefited the Custodian. The Complainant furthercontends that because the Custodian denied every OPRA request seeking e-mails during thistime frame (which are the subject of several complaints before the GRC), it is unreasonable tobelieve that the denials are not interconnected to the events taking place at that time. TheComplainant argues that the GRC must consider the totality of these circumstances whendetermining whether the Custodian’s actions rose to the level of a knowing and willful violationof OPRA.

Further, the Complainant asserts that the inclusion of “John Doe” and Jane Doe” in hisFebruary 21, 2013 OPRA request was so that the Custodian and Mr. Cooper could not claim thatan e-mail containing anyone other than those names identified in the OPRA request was notresponsive. The Complainant contends that because of the Custodian and Mr. Cooper’s repeateddenials of access to valid OPRA requests, he believed that the inclusion of these terms wasjustified and warranted under the totality of the circumstances. The Complainant asserts thateven if it is determined that the terms are overly broad, this inclusion did not render theremainder of the OPRA request invalid.

The Complainant argues that this response further proves his argument that the Custodianand Mr. Cooper have concocted different reasons for denying access to valid OPRA requests.The Complainant notes that they denied access to his other requests as a substantial disruption ofagency operations requiring a special service charge for their IT vendor to search for responsiverecords.


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Analysis8

Timeliness

OPRA provides that, “[i]f the custodian is unable to comply with a request for access, thecustodian shall indicate the specific basis therefor on the request form and promptly return it to therequestor. The custodian shall sign and date the form and provide the requestor with a copy thereof…” N.J.S.A. 47:1A-5(g).

Further, OPRA provides that:

Unless a shorter time period is otherwise provided by statute, regulation, orexecutive order, a custodian of a government record shall grant access … or denya request for access … as soon as possible, but not later than seven business daysafter receiving the request … In the event a custodian fails to respond withinseven business days after receiving a request, the failure to respond shall bedeemed a denial of the request … If the government record is in storage orarchived, the requestor shall be so advised within seven business days after thecustodian receives the request. The requestor shall be advised by the custodianwhen the record can be made available. If the record is not made available bythat time, access shall be deemed denied.

N.J.S.A. 47:1A-5(i) (emphasis added).

OPRA provides that a custodian may request an extension of time to respond to an OPRArequest, but that a specific date for when the Custodian will respond must be provided. N.J.S.A.47:1A-5(i). OPRA further provides that should the custodian fail to provide a response on thatspecific date, “access shall be deemed denied.” N.J.S.A. 47:1A-5(i).

In Kohn v. Township of Livingston Library (Essex), GRC Complaint No. 2007-124(March 2008), the custodian responded in writing on the fifth (5th) business day after receipt ofthe complainant’s March 19, 2007, OPRA request, seeking an extension of time until April 20,2007 to fulfill the complainant’s OPRA request. However, the custodian responded on April 20,2007, stating that he would provide the requested records later in the week, and the evidence ofrecord showed that the Custodian provided no records until May 31, 2007. The Council heldthat:

The Custodian properly requested an extension of time to provide the requestedrecords to the Complainant by requesting such extension in writing within thestatutorily mandated seven (7) business days pursuant to N.J.S.A. 47:1A-5(g) andN.J.S.A. 47:1A-5(i) ... however … [b]ecause the Custodian failed to provide theComplainant access to the requested records by the extension date anticipated bythe Custodian, the Custodian violated N.J.S.A. 47:1A-5(i) resulting in a “deemed”denial of access to the records.”

8 There may be other OPRA issues in this matter; however, the Council’s analysis is based solely on the claimsmade in the Complainant’s Denial of Access Complaint.


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Id.

Here, as in Kohn, supra, the Custodian responded in writing to the Complainant’sFebruary 21, 2011 OPRA request seeking an extension of one (1) week to respond; thus, theCustodian’s written response granting or denying access to the requested minutes was due bythat date. However, the Custodian failed to respond in writing to the Complainant prior to theexpiration of the extended deadline.

Therefore, although the Custodian timely responded to the Complainant’s February 21,2011 OPRA request in writing requesting an extension of one (1) week to respond to saidrequest, the Custodian’s failure to respond in writing within the extended time frame results in a“deemed” denial of the Complainant’s OPRA request pursuant to N.J.S.A. 47:1A-5(i), and Kohn,supra. See also Verry v. Borough of South Bound Brook (Somerset), GRC Complaint No. 2008-253 (September 2009).

Unlawful Denial of Access

OPRA provides that government records made, maintained, kept on file, or received by apublic agency in the course of its official business are subject to public access unless otherwiseexempt. N.J.S.A. 47:1A-1.1. A custodian must release all records responsive to an OPRA request“with certain exceptions.” N.J.S.A. 47:1A-1. Additionally, OPRA places the burden on acustodian to prove that a denial of access to records is lawful pursuant to N.J.S.A. 47:1A-6.

OPRA provides that “[i]f a request for access to a government record would substantiallydisrupt agency operations, the custodian may deny access to the record after attempting to reacha reasonable solution with the requestor that accommodates the interests of the requestor and theagency.” N.J.S.A. 47:1A-5(g) (emphasis added). In Herron v. Township of Montclair (Essex),GRC Complaint No. 2008-46 (April 2009), the complainant requested a list of the total numberof juveniles arrested in the last twelve (12) months organized by race, gender, and offense, and alist of the total number of juveniles sent to Essex County Youth Facility organized by race,gender, and offense. The custodian responded in writing to the complainant’s OPRA request onthe seventh (7th) business day following receipt of such request stating that 178 juveniles werearrested in Montclair and 32 were sent to the Essex County Youth Facility during the year 2007.The custodian further stated that she would have to research every report to find the race, gender,and offense of each juvenile. Thus, the custodian denied the Complainant access to the requestedrecords stating that fulfilling the request would substantially disrupt the operation of the agencypursuant to N.J.S.A. 47:1A-5(g). In analyzing the facts of Herron, supra, the Council reasonedthat:

Although OPRA permits a custodian to deny access to a records request on thebasis that fulfilling the request would substantially disrupt agency operations,OPRA requires that the custodian must first attempt to reach a reasonableaccommodation of the request with the requestor before denying access. N.J.S.A.47:1A-5. See Vessio v. NJ Department of Community Affairs, 2007-63 (May2007)(holding that the custodian must attempt to reach a reasonable


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accommodation before denying access based on substantial disruption of agencyoperation).

Id. at page 3-4 (emphasis added).

The Council determined that although the custodian asserted that responding to therequest would cause a substantial disruption of agency operations, the custodian failed to showthat she attempted to reach a reasonable accommodation of the request with the complainant.The Council thus held that “… because the Custodian failed to attempt a reasonableaccommodation of the Complainant’s OPRA request before denying access to the requestedrecords on the basis that the request would substantially disrupt the Township’s operations, theCustodian’s response is insufficient under OPRA pursuant to N.J.S.A. 47:1A-5(g)” Id. See alsoCaldwell v. Vineland Board of Education (Cumberland), GRC Complaint No. 2009-278 (March2011).

Here, Mr. Cooper responded on behalf of the Custodian both denying the February 2,2011 OPRA requests as a substantial disruption to agency operations and offering theComplainant an accommodation. A plain reading of the statute provides that the accommodationmust be made prior to denying the access on these grounds and not simultaneously to the denial.The evidence here clearly indicates that the Custodian failed to attempt to reach theaccommodation and thus cannot deny access to the requests as a substantial disruption. Thus,because the Custodian failed to attempt to reach a reasonable accommodation prior to denyingaccess to the Complainant’s February 2, 2011 OPRA requests, the Custodian’s response isinsufficient. N.J.S.A. 47:1A-5(g); Herron, supra.

Regarding all OPRA requests, in Carter, 2011-234, the Council was tasked withdetermining whether the complainant’s OPRA request seeking “… e-mails from December 1,2010 through February 2, 2011 regarding insurance sent or received …” by eight (8) specificallynamed individuals. Relying on its prior decision in Elcavage v. West Milford Township(Passaic), GRC Complaint No. 2009-07 (April 2010), the Council determined that theComplainant’s OPRA request fulfilled “…the necessary criteria and thus is a valid OPRArequest for which the Custodian should have provided records and failed to do so.” Id. at 9.

Conversely, in Wolosky v. Borough of Riverdale (Morris), GRC Complaint No. 2010-192 (October 2011), the complainant sought e-mails from the clerk to “ … every other MunicipalClerk in Morris County …” The Council applied the Elcavage, criteria and determined that thesubject request was invalid because it sought “… e-mails from and to a specific class ofemployee (specifically, Morris County Municipal Clerks) and not individually named sendersand recipients.” Id. at 6.

Here, the February 2, 2011 and February 21, 2011 OPRA requests are similar to therequest in Carter, 2011-234. Specifically, the OPRA requests contain the requisite followinginformation necessary for the Custodian to locate and provide records, if any exist: (1) thecontent and/or subject of the e-mail, (2) the specific date or range of dates during which the e-mail was transmitted or the e-mails were transmitted, and (3) identification of the sender and/orthe recipient thereof. The only exception is the terms “John Doe” and “Jane Doe” present in the


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February 21, 2011 OPRA request. These terms are non-specific and are even more general thanthe complainant’s request at issue in Wolosky, supra. However, the GRC agrees with theComplainant that even the inclusion of these two (2) terms does not render the entire OPRArequest invalid.

To reiterate, a valid OPRA request requires a search, not research. An OPRA request isthus only valid if the subject of the request can be readily identifiable based on the request.Whether a subject can be readily identifiable will need to be made on a case-by-case basis. Whenit comes to e-mails stored on a computer, a simple keyword search may be sufficient to identifyany records that may be responsive to a request. Further, a completed “subject” line may besufficient to determine whether the record relates to the described subject. Again, what will besufficient to determine a proper search will depend on how detailed the OPRA request is, andwill differ on a case-by-case basis. What a custodian is not required to do, however, is to actuallyread through numerous e-mails to determine if any are responsive: in other words, conductresearch.

Therefore, The Custodian failed to bear her burden of proving a lawful denial of access toany responsive records to the February 2, 2011 OPRA requests and the remainder of theComplainant’s February 21, 2011 OPRA request identifying specific individuals. N.J.S.A.47:1A-6; Carter, 2011-234. Thus, the Custodian shall provide those readily identifiable recordsthat existed at the time of the Complainant’s OPRA requests, if any. If the Custodian believescertain records are exempt from disclosure or that no records exist, the Custodian must legallycertify to these facts.

However, the Custodian has borne her burden of proving a lawful denial of the access tothe portion of the Complainant’s February 21, 2011 OPRA request including the terms “JohnDoe” and “Jane Doe.” N.J.S.A. 47:1A-6; Wolosky, supra.

The GRC further notes that the Custodian acknowledged receipt of the Complainant’sFebruary 2, 2011 OPRA requests on February 7, 2011 and requested that the Complainantcomplete an official OPRA request form; however, there is no evidence in the record that theComplainant ever completed and submitted his requests on the FFD’s official form. It shouldfurther be noted that Mr. Cooper advised the Custodian to institute a policy of not responding toOPRA requests unless the requestor completed an official OPRA request form. However, theCustodian’s request that the Complainant complete an official Township OPRA request form isan impermissible limitation on access pursuant to Renna v. County of Union, 407 N.J. Super.230 (App. Div. 2009), because the Complainant’s e-mailed OPRA requests clearly invokedOPRA and made clear the nature of the request.

Knowing & Willful

The Council defers analysis of whether the original Custodian knowingly and willfullyviolated OPRA and unreasonably denied access under the totality of the circumstances pendingthe Custodian’s compliance with the Council’s Interim Order.


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Prevailing Party Attorney’s Fees

The Council defers analysis of whether the Complainant is a prevailing party pending theCustodian’s compliance with the Council’s Interim Order.


The Executive Director respectfully recommends the Council find that:




4. The Custodian shall comply with item No. 3 above within five (5) business daysfrom receipt of the Council’s Interim Order with appropriate redactions,including a detailed document index explaining the lawful basis for eachredaction, and simultaneously provide certified confirmation of compliance, inaccordance with N.J. Court Rule 1:4-4,9 to the Executive Director.10




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Approved By: Brandon D. Minde, Esq.Executive Director

August 20, 2013

interim order march 25, 2014 government records council ... · jeff carter1 grc complaint nos....

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